News

A January 20 hearing before the House Subcommittee on Immigration and Citizenship considered the case for creating an independent immigration court system. Witnesses, including representatives of the American Bar Association, Federal Bar Association, and the National Association of Immigration Judges, testified about how the structure of the immigration court undermines access to justice.

The Advocates for Human Rights was among more than twenty organizations who provided written statements for the record. You can read our statement here.

Our statement drew on our experience defending people in immigration court and nearly five years of comprehensive monitoring of detained immigration hearings by our Immigration Court Observation Project to highlight key problems endemic in the immigration court's structure. Among these is the perception of political interference:

"In our December 2020 report, Bearing Witness in the Moment: Report from the Immigration Court Observation Project, The Advocates for Human Rights noted that '...many observers perceived that, as an executive branch agency, the immigration court does not operate with the independence of other courts established within the judicial branch and that immigration judges, as Department of Justice employees, must follow executive branch policies. For some observers, this resulted in a perception of political interference.' Immigration court observers reported perceiving that immigration judges are 'more like administrators than judges,' they are 'subject to political directives, rather than interpreting law,' and that 'the system is rigged...' As one observer summed up, 'How can judges be impartial with this much pressure? As employees of executive branch, they just can't be impartial.'"

We also noted how actual political interference has undermined due process and access to a fair day in court. This includes systemic problems ranging from the ability of the attorney general to overturn by fiat any precedential decision binding on immigration courts which run counter the administration's political agenda. Being subject to executive branch budgeting decisions has resulted in chronic underfunding. This, in turn, has led to serious failures that violate fair trial standards including failure to provide adequate language access to people facing a complex and high-stakes process, docket management practices that deprive people of a fair day in court, and delays that leave people to languish in detention until they give up without a fight.

It's clear that many of the human rights violations that occur in the context of immigration court proceedings are the result of broader failures of the U.S. immigration laws. Congress must provide meaningful defenses to deportation and avenues for people who are not in status to move into lawful immigration status and must recalibrate the excessive and coercive power given to ICE to detain people without any individualized custody determination, among other things.  But other violations are the result of the failure to house the immigration courts within an independent judiciary, and the creation of an independent immigration court is an essential step toward ensuring that removal proceedings meet basic standards regarding fair hearings.

Click here to watch the hearing and read testimony submitted by witnesses.